What Is an Antitrust Problem, Anyway? Toward Antitrust Unlimited

What is it we talk about when we talk about antitrust? Frequently, a call for antitrust action at the frontier of the field is met by the response that the issue in question is “not an antitrust problem.” Things we were told pre-2020 were not “antitrust problems,” it ran the gamut from “patent holdup” and forcing a buyer to take an unwanted product to fake news and privacy breaches. Surprisingly, however, “antitrust problem” is not a well-defined term. As this has been pointed out, U.S. antitrust law as it exists today does not punish all ends that injure consumer welfare—for example, it is explicitly legal to possess a monopoly, and to use it to restrict output and charge monopoly prices. Nor does antitrust punish all means that injure consumer welfare—fraud and deception can injure consumer welfare, but without more they are not actionable under the antitrust laws. Post-2020, we find ourselves in an era in which policymakers are asking, not without some pushback, whether economic inequality, racial disparities, and decades of falling or stagnant wages can and should be addressed as problems by antitrust law. To define “antitrust problem,” we must consider what antitrust is ultimately supposed to protect: the benefits for Americans of a national economic system based on market competition. Displacing such a system, and thereby depriving consumers of the benefits of such a system, is at the heart of what antitrust was designed to accomplish—even if contemporary antitrust doctrine paints in much narrower brushstrokes.